Rights over your remains

After the death of a loved one comes the first daunting task of having to deal with the funeral. Unfortunately it is never as straightforward as one may think especially in the case of estranged families or unmarried couple for e.g. if the person who died was not married or in a civil partnership with their partner then the living partner does not automatically have the right to make the funeral arrangements. Many legal disputes have arisen as to who can take responsibility of the body and whether it should be buried or cremated or where the ashes should be scattered. Quite wrongly people believe that if they are “next-of-kin” they can take over this responsibility.

There is a unique position with regard to children however. Parents have a duty to bury their child but sadly difficulties can arise when parents have separated or divorced and differ in opinion as to how and where the child should be buried. In Fessi v Whitmore (1999) the Court had to decide on where the ashes of a 12 year old should be scattered. When the parents separated the child moved with the father to Wales and was then tragically killed on the beach. The parents agreed that he should be cremated but his father wanted his ashes scattered in Wales whereas the mother wanted this to be done in Nuneaton where they had all lived as a family. The Judge refused to divide the ashes and instead agreed that they should be scattered in Nuneaton as the child had spent most of his life there and had only lived in Wales for a short time.

In Borrows v HM Coroner for Preston (2008) a 15 year-old boy committed suicide whilst in custody at Lancaster Farm Young Offenders Institution. His paternal uncle had raised him for the eight years prior to his death and said he had wished to be cremated. The child’s mother had only seen him once in those 8 years and wanted his body to be buried. She would have priority normally under the rules of intestacy over the Uncle but because of the history and the mother being incapable of assuming the responsibility the Court gave the right to the paternal uncle.

From these two authorities and other similar cases, it would appear that the Court will make a decision by looking at the parents’ interests and also giving regard to where the child held the strongest connections during their life and also the party’s wishes and feelings.

As far back as 1882 (Williams v Williams) it was determined that there is no right of ownership in a dead body and a person “cannot effectively dispose of it in his will”. The Court also went on to say that any directions given by the deceased are not enforceable as a matter of law. This was because the purpose of a Will was generally to deal with a person’s property after death and as a body is not a property, a Will containing instructions for the funeral was not considered legally binding or enforceable. This changed following the introduction of the Human Rights Act 1998. Article 8 is the right to respect for family life. But the question remains as to who can dispose of the body?

There is a duty at common law to arrange for a body’s proper disposal and this would mean the personal representatives of the deceased – either an executor appointed under a Will or if there is no Will then the person with priority under the non-contentious probate rules. This can be illustrated in the case of Holtham v Arnold in 1986. Mr and Mrs Arnold separated in 1984. He then lived with Ms Holtham until his death but he never divorced Mrs Arnold. He not have a Will. Ms Holtham (as his current girlfriend) made arrangements based on what she knew were Mr Arnold’s wishes but Mrs Arnold was not happy as she believed he would have wanted different arrangements. Mrs Arnold was the person entitled to administer the estate (as his widow). The Court said that if it had to make a choice it would involve them expressing an inappropriate moral judgement – so they applied the law which meant Mrs Arnold was able to arrange the funeral as she was the one entitled to administer the estate under the intestacy rules.

These disputes are stressful and emotional but it also means that they body cannot be put to rest for many months until they are resolved one way or another.

A lot of people believe that they do not need to make a Will if they have nothing to leave financially, however by making a Will you can appoint your executor who can deal with your funeral wishes and avoid any unnecessary and heart breaking arguments after the event. It is therefore important to record your funeral arrangements in a Will and/or a letter of wishes which accompanies your Will.

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